Law without Justice
A Report by rose Ismail
LET ME begin with Jehan Mina, a 13year-old orphan who was sent by her grandmother to help out an aunt in a remote village in northern Pakistan.
Two years later, in 1983, Jehan got pregnant. According to her testimony, she was raped by her uncle and his son. Her family refused to believe her and threatened to kill her when one uncle took pity and registered a rape accusation on her behalf.
Unfortunately for Jehan, her testimony was useless. Under Pakistan's Hudud laws, four devout adult males would have to witness the act to prove her innocence and because she was unable to do this, she was found guilty of zina or illegal sexual intercourse.
The court sentenced her to 10 years imprisonment and 100 lashes but this was later reduced to a 5-year term with 30 lashes by a higher court.
In that same year, Safia Bibi, an 18-year old girl who was virtually blind was employed in the local landlord's house as a domestic help.
According to her statement made to the police, she was raped first by the landlord's son and subsequently by the landlord himself. As a result, she became pregnant and gave birth to an illegitimate child who later died.
Her father registered a case of rape after the death of the child but the court acquitted both the landlord and his son of the crime, as there was not enough evidence to prove under the Hudud Ordinance.
Because this wasn't possible, Safia's self-confessed pregnancy was used as evidence of by the judge who claimed he gave Safia a light sentence because of her young age and near blindness.
A person can be sentenced in one or two ways, depending on the religion and marital status of the accused, the witnesses and the evidence on which the conviction rests.
The maximum sentence is known as hadd (limit), the singular of hudud. In the case of fornication and adultery if the accused is a Muslim and confesses or there are four pious, adult male Muslim witnesses to the act of penetration, then the accused must be sentenced to death by stoning.
If the person is a non-Muslim and confesses, or the crime is witnessed by four pious, male Muslim adults, the accused must be sentenced to 100 lashes. The testimony of four female Muslim witnesses, however, is not adequate for the maximum punishment.
If the evidence falls short of what is required for maximum punishment but the case is still proven, then the accused is sentenced to a lesser class of punishment known as ta'azir.
Evidence is governed by the standard evidence code, which was introduced by General Zia in 1984. (It states that "unless otherwise provided in any law relating to the enforcement of Hudud.... In matters pertaining to financial or future obligations.... The instrument shall be attested to by two men or by one man and two women......in all other matters, the court MAY (emphasis mine) accept, or act on, testimony of one man or one woman"). The use of the word "may" in the second part of the section provides for the admissibility of the testimony of women but does not guarantee that such a testimony wiII be admitted or given equal weight with that of a man.
At all levels of punishment, the burden of proof is on the prosecution to prove rape or adultery or fornication charges beyond doubt.
There is a general rule that if there are two versions of an incident, the one favoring the accused should be accepted by the court. In one 1988 zina case, the benefit of the doubt was given to the accused and he was acquitted when penetration was not positively proved.
Other cases have also maintained that semen stains or vaginal swabs do not necessarily mean that sexual intercourse has taken place. Rather, there must be positive proof of penetration or other corroborative evidence. In practice, and this is something people in
Malaysia have to be particularly sensitive to, the courts in Pakistan appear to exhibit a bias against female testimony. There is a general tendency to see women as collaborators in sex crimes, even if there is no evidence or evidence is available to the contrary.
Studies have shown that while the courts extend the benefit of doubt to men accused of rape, female rape victims require conclusive proof that the intercourse was forced.
And, if there is no evidence of force, and this is quite possible when a man holds a knife at the woman's throat, preventing her from retaliating in any way - the charge is also dismissed.
What is even more dangerous and frightening is that when women cannot prove rape, they are themselves charged with illicit sex.
There is also evidence to show that
the Pakistani police have sometimes been over zealous in the
implementation of the Law. In November 1991, 10-year-old Majeeda
Mujid was abducted by a landowner and several other men for over
two months and
raped repeatedly during the period. Ten days after her abduction, Majeeda's family filed a First Information Report (FIR) with the local police.
Eventually the landowner brought Majeeda to the police station and tried to force her to tell them that she was staying with them on her own wiII. She refused and told the police that the landowner raped her.
She was kept in the police station for six days without seeing a female police officer. On the sixth day, she was taken to prison and charged for fornication. She spent two months in prison before being released pending trial.
So, if you live in a community where women are seen as unequal to men both socially and economically, and might I remind you that Pakistan is not the only country where women are regarded in this way - you would have to be a brave woman indeed to claim that you have been raped.
Malicious prosecution, police
harassment and abuse of power have protected rapists and
victimized victims of Hudud crimes.
Hudud law has also affected women in other ways. Disgruntled husbands and fathers, for example, and bring ill-founded adultery or fornication charges against their wives and daughters, who upon the basis of such accusations, often unsupported by evidence, are arrested and imprisoned pending trial.
Studies have shown some husbands
filing 'adultery' cases against their wives or former wives
either to keep them in forced marriages or simply to humiliate
What is alarming is that mere suspicion of adultery by the wife is often reported as adultery. Of the 90 women prisoners accused of adultery surveyed in 1 988, more than half had been accused by their husbands or fathers.
Women who divorce and re-marry are also at risk of malicious denunciation under the Hudud Ordinances. According to the Muslim Family Laws Ordinance, passed in 1961, a man seeking to divorce his wife after pronouncing the divorce to her orally must send a written notice of the divorce to a local council and provide a copy to his wife.
After this official registration, 90 days must pass before the divorce becomes legally binding. During this three-month period, an arbitration council is established to try and reconcile the couple. If it succeeds, the divorce is revoked.
However, after the implementation of Hudud laws in Pakistan, a husband's failure to register a divorce has often resulted in criminal penalties against the wife.
Women who have remarried mistakenly believing that their first husband had properly registered the divorce have been charged by that husband with adultery.
Take the case of Shahda Parveen and Mohammed Sarwar, who in November 1987 was sentenced, to death by stoning for adultery and rape. Shahda had been divorce by her first husband and married Mohammed after the 90-day period. Shahda even had an affidavit attesting to her single status.
However, Shahda didn't know that her
first husband did not register their divorce as required under
the Muslim Family Law Ordinance and had decided that he wanted
Because Shahda's first divorce was not recognized by the court, she and her new husband were charged for adultery and rape and sentenced to death. The sentence was later overturned by the Supreme Court on the grounds that it had no basis in law or fact but by then, Shahda had spent over nine months in prison.
Mohammed, the co-defendant, was also previously married and had not divorced his wife. But because polygamy is legal in Pakistan, he was released immediately on bail. Women who decide to marry against the wishes of their relatives can also be denounced under Hudud laws. Out of the 44 women in Karachi Central jail in 1987 who were charged with Hudud offences, over half were accused of having committed zina due to leaving their homes with a man of their choice.
Pakistani courts usually interpret this as abduction. Because a woman is not a free agent and therefore has no rights to leave home without the family's permission, she is seen to have abducted herself if she does so.
The police have also abused the Hudud laws for the purposes of extorting money or exercising social control over women and through them, the broader population.
In one 1990 case, four women were taken from the house of Mrs. Halim by police who were searching for the women's male relatives. The four women were brought to the police station, reportedly after being molested by several police en route and illegally detained for nine hours until the accused male relatives surrendered.
Men can also be victims of false adultery and fornication charges. They are often arrested as co-defendants in such cases and imprisoned pending trial but many who are convicted on rape get these charges converted into the lesser charges of adultery and fornication as a preclude to conviction.
But men are arrested less frequently than women on adultery and fornication crimes. Interviews with women prisoners charged with Hudud offence in 1988 found that in 29 percent of the cases, no male accused was mentioned in the original report. Among those in which a male was accused, he was not arrested in 40 per cent of the cases.
To sum it up- Hudud laws affect all Pakistanis but are applied to women with a more disastrous effect.
Statistics gathered in recent studies in indicate that in some prisons, Hudud offences account for 60 to 70 per cent of women in detention. According to 1991 figures compiled by the Karachi-based committee for the repeal of the Hudud Ordinances, more than 2,000 women were at that time in jail waiting trial under this law.
Although many convictions are reversed on appeal (approximately 33 per cent of rape and adultery charges are overturned) women and men alike would have suffered lengthy periods of imprisonment before they are released.
This is particularly true for women who lack the financial resource to obtain adequate counsel or to post bail.
This is only a small portion of the
information that I had collected on Pakistan. Hudud laws are also
implemented in Iran, Saudi Arabia, the Sudan and Libya but I was
not able to get conclusive data on such laws in these countries.
Some of the embassies here were reluctant to talk to me about it.
In Morocco, family law is based on Islamic legal principles but according to the ambassador here, "Hudud is not included".
Iraq also does not have Hudud laws
and although there have been "crimes of honor" reported
from the rural areas in some of these countries-crimes in which a
woman is killed for dishonoring the family, the family metes out
the punishment and this goes against Hudud laws even.
In Iran, I read earlier this year that the government was considering whether to stop amputating hands and legs for Hudud crimes because this was no longer considered a shame because many Iranians had lost their arms and limbs in the Iran-Iraqi and Gulf Wars.
However, there appears to be active discussion of the subject among women and human rights groups about Iranian Hudud Law because we received earlier this year information on the sizes of stones to be used for Hudud crimes.
In Bangladesh a 22 year old woman and her husband were accused of adultery by the village imam and stoned 100 times while her elderly parents were subjected to 100 lashes.
The facts of this case will take too long to explain here but if Hudud law is to be implemented in the conventional way, this case obviously runs contrary to Islamic law.
It has been argued that Muslims in some countries should not bother about Pakistan or any other country that has implemented Hudud laws. Of course, you can accept this advice and bury your head in the sand but the world is such a small place and human beings are so alike even though we live in different countries and communities. If abuses occur in one country, we are morally obliged to take heed. This may prevent us from repeating the errors elsewhere.
Information for this
paper was obtained from dossiers produced by Women Living
Under Muslim Law, Asia Watch, the Women's Rights Project
of the Human Right's Watch and "Women" of